Citation Nr: 0827641
Decision Date: 08/15/08 Archive Date: 08/22/08
DOCKET NO. 06-15 913 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Medical and Regional
Office Center (RO) in Wichita, Kansas
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder to include post-traumatic-stress disorder (PTSD),
schizoaffective disorder, panic disorder, depression, and
bipolar disorder.
REPRESENTATION
Veteran represented by: Virginia A. Girard-Brady,
Attorney at Law
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
INTRODUCTION
The veteran served on active duty from January 1985 to April
1988.
This matter comes to the Board of Veterans' Appeals (Board)
from an April 2004 rating decision of the Department of
Veterans Affairs (VA) Regional Office in Wichita, Kansas (the
RO).
The veteran subsequently submitted evidence directly to the
Board. In August 2007, the veteran submitted a written
waiver of consideration of such evidence by the agency of
original jurisdiction. See 38 C.F.R. § 20.1304 (2007).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
Unfortunately, a remand is necessary for further evidentiary
and procedural development.
With respect to the PTSD portion of the claim, the veteran
has not received appropriate notice of the Veterans Claims
Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In pertinent
part, under VCAA, the veteran must be provided notice of the
evidence that is necessary to substantiate the claim.
38 C.F.R. § 3.159(b)(1). The VCAA notice provided by the RO
in July 2003 did not include information specific to the
substantiation of the claim of entitlement to service
connection for PTSD contemplated in 38 C.F.R. § 3.304(f).
Thus, VCAA notice pertinent to that portion of the claim
related to PTSD must be provided.
Further, in Dingess v. Nicholson, 19 Vet. App. 473 (2006),
the United States Court of Appeals for Veterans Claims
(Court) held that, upon receipt of an application for a
service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating, or is
necessary to substantiate, each of the five elements of the
claim, including notice of what is required to establish
service connection and that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded. The RO included the
information mandated by the Court in Dingess in the April
2006 statement of the case, but notice consistent with
Dingess should be provided by letter.
Finally, in September 2003, a VA psychiatrist wrote a letter
to the Social Security Administration (SSA) in furtherance of
an apparent Social Security disability claim. Particularly
because the letter reflects an inability to work due to
disabilities of a psychiatric nature, VA is bound to request
from SSA records pertinent to the veteran's claim for Social
Security disability benefits as well as the medical records
relied upon concerning that claim. See Murincsak v.
Derwinski, 2 Vet. App. 363 (1992) [VA's duty to assist
includes obtaining records from SSA and giving appropriate
consideration and weight in determining whether to award or
deny VA disability compensation benefits].
Accordingly, the case is REMANDED to the Veterans Benefits
Administration (VBA) for the following actions:
1. VBA should send the veteran a
corrective VCAA notice that advises him of
the means by which to establish
entitlement to service connection for PTSD
pursuant to 38 C.F.R. § 3.303(f) and that
contains information regarding disability
ratings and effective dates as
contemplated by the Court in Dingess.
2. VBA should also obtain copies of the
SSA disability determination letter
pertinent to the veteran's claim for Social
Security disability benefits, along with
copies of all medical records relied upon
in reaching that determination. All
efforts in this regard should be documented
in the claims folder.
3. After undertaking any additional
development which it deems to be
necessary, VBA should then
readjudicate the veteran's claim of
entitlement to service connection for
an acquired psychiatric disorder. If
the benefit sought on appeal remains
denied, VBA should provide the
veteran and his attorney with a
supplemental statement of the case.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
S. BUSH
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).